The dismissal of the first elected Communist Government in Kerala: An abuse of Article 356 of the Constitution

The dismissal on 31 July 1959 of the democratically elected State Government of Kerala – the first ever instance of a parliamentary road to Communism – represents a historically significant abuse of Article 356 of the Constitution. A lot has changed since, with the Communist movement in India finding ways to work in a multi-party democracy while the use and abuse of Article 356 – the Emergency provision in the Constitution of India meant to ensure the constitutional scheme of things – persisted for long after that.

Article 356 of the Constitution reads:

“356. (1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation — (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State […].”

The marginal note in the text describes Article 356 as a “provision in case of failure of constitutional machinery in States.” This article is part of the Emergency Provisions (Articles 352 to 360) in Part XVIII of the Constitution, which continue to remain in the statute book and are construed as enabling provisions for the Union Government in its “duty” to protect States against external aggression and internal disturbance. These provisions are meant to ensure that constitutional guarantees, including some of the fundamental rights or its features such as federalism, can be put on hold.

Article 278 of the Draft Constitution (that would become Article 356) presented before the Constituent Assembly and debated intensely on 3 and 4 August 1949 was adapted from the Government of India Act, 1935. It is necessary to note that the 1935 Act did not hold any pretension or commitment to federalism. However, the Constitution adopted on 26 November 1949 was anchored in federal principles and hence Article 278 of the Draft Constitution was perceived by members of the Constituent Assembly as un-federal. Several members of the Assembly, in fact, argued against its inclusion in the Constitution for they apprehended that this article will be misused. On 4 August 1949, replying to the debate, the Chairman of the Drafting Committee Dr. B.R. Ambedkar sought to allay such fears and said:

I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the provinces. In fact, I share the sentiments expressed by my honourable friend Mr. Gupte yesterday that the proper thing we ought to expect is that such articles will never be called into operation and that they would remain a dead letter. (Constituent Assembly Debates, Volume IX, p. 177)

Ambedkar went on to elaborate the basis for his hope that the provision will remain a statute and yet not enforced:

If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a province that has erred, that things were not happening, in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when these two remedies fail that he would resort to this article. It is only in those circumstances that he would resort to this article. I do not think that we could then say that these articles were imported in vain or that the President had acted wantonly.

On 31 July 1959, on the advice of the Union Cabinet, the President invoked Article 356 of the Constitution to dismiss Kerala’s elected Chief Minister E. M. S. Namboodiripad (EMS) and his cabinet and ordered the dissolution of the State Assembly.

Rajendra Prasad was President on 31 July 1959 when Article 356 was summarily invoked to dismiss a democratically elected government. He had also been the Chairman of the Constituent Assembly and had presided over the session on 3 and 4 August 1949, when Ambedkar had rested all hopes in the President taking precautions against any abuse of the Article 356. Jawaharlal Nehru, whose presence dominated every moment of the making of the Constitution, was Prime Minister and Gobind Ballabh Pant, who too was a leading light in the life of the Constituent Assembly, was Home Minister on 31 July 1959.

This all happened a few days short of a decade after Ambedkar expressed the solemn hopes that this article will remain a dead letter.

This was not the first time that Article 356 was invoked in the then short history of the Indian Constitution. Gian Singh Rarewala, sworn in as Chief Minister of the Punjab and East Patiala States Union (PEPSU) in April 1952, headed the only non-Congress State Government in independent India. Rarewala was dismissed and the State Assembly dissolved invoking Article 356 of the Constitution on 5 March 1953. The fact, however, is that Rarewala had become Chief Minister as leader of an unstable United Front constituted by an amorphous group of parties and independents and his command over his supporters remained in doubt. Interestingly, Rarewala himself joined the Congress Party soon after his dismissal and joined the cabinet of Congress Chief Minister Pratap Singh Khairon in the Punjab State Government in 1957.

The circumstances of EMS ministry and the Communist Government he headed in Kerala since 5 April 1957 were completely different. The most striking differences were that the cabinet headed by EMS continued to command majority support in the State Legislative Assembly throughout his term; that the Communist Party of India (CPI) had won in 60 constituencies and five of the independents it supported in the elections too had won their elections; and that 65 out of 114 Members of the Legislative Assembly (MLAs) continued to support the ministry until it was dismissed.

There was therefore no doubt that EMS commanded support of the majority in the State Assembly and this difference is crucial: this is the very reason why the dismissal of the EMS ministry on 31 July 1959 was the first ever instance of abuse of Article 356 of the Constitution.

It is important to understand the events that led to the EMS ministry dismissal on 31 July 1959. In the first ever elections after Kerala came into being as a State on 1 November 1956, the CPI along with independents the Party supported in the elections won a majority in the State Assembly. The Travancore-Cochin State (formed in 1947 out of the two Princely states in colonial India) was merged with the Malabar district of Madras and the Kasargod taluk of the South Canara district, where the people spoke Malayalam, to form the State of Kerala. This was as part of the linguistic reorganization of States in independent India. The communists had established a strong presence in these regions during the freedom struggle, where they bonded with the peasants and the working class on the idea of nationalism. The communists were also at the forefront of the agitation of the Malayalam-speaking people for the linguistic re-organization of the States.

This historical background of the Communist movement, as much as the prominent role it played in the struggle for social reforms and against caste discrimination, helped them entrench among the subaltern sections of society. With an emphatic win in the elections, the Party’s Government set out translating its manifesto into legislations.

One of the first actions that the Government took was to render justice to the teachers in schools that received aid from the State. Only a fifth of the over 10,000 schools in the State were run by the Government. The rest were run by private bodies controlled by the Church of various denominations or by caste associations, predominantly of the Nair community. The bulk of the finances for these private schools, however, was drawn from the Government and they were hence listed as aided schools.

Six days after swearing in, Joseph Mundasery, the Minister for Education in the EMS Government, announced the intention to introduce a legislation to regulate the functioning of the aided schools. The Minister did not mince words: the objective was to put a stop to the tyranny of these managements while dealing with the school teachers. The managements were known to pay teachers a small portion of the Government’s aid drawn for this purpose, to fire teachers at whim and treat recruitments clientelistically.

The Bill introduced in the State Assembly on 13 July 1957 caused a furor. The Congress Party raised objections on several counts while the Indian Union Muslim League (IUML) called it a “Nazi” attempt. The Bill was referred to a Select Committee on 20 July 1957 whose report was placed in the House on 27 August 1957. After another round of debate, the Bill was passed by a majority on 2 September 1957. Amidst this, the private managements too protested outside the State Assembly and the Governor, instead of giving his assent and thus rendering it into a law, sent it “for consideration of the President.”

The Constitutional scheme warranted the President to act on the recommendation of the Union Cabinet, which recommended that the President refer the legislation to the Supreme Court for its opinion under Article 143 (1) of the Constitution. Article 143 (1) reads:

If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.

On 22 May 1958, the Supreme Court gave its opinion. Even though the Court pointed out infirmities with regard to some of the provisions – particularly those pertaining to establishing State control over schools managed by the Anglo-Indian community – it found the Bill as passed by the State Assembly consistent with the Constitution. The State Government reviewed the Bill, amended it in accordance with the Supreme Court’s opinion and the amended version was passed on 28 November 1958.

By this time, there was nothing in the law that could be held unconstitutional. The reforms that the legislation sought in the education sector was precisely what the Constitution had mandated. The Bill was consistent with such provisions in the directive principles of state policy as Articles 41, 45 and 46 of the Constitution; it read harmoniously with fundamental rights as guaranteed by Articles 14 and 19; and it was also consistent with the rights guaranteed to minority communities by Articles 26, 29 and 30 of the Constitution. The Supreme Court’s opinion had taken all these into account and discussed them in elaborate detail.

Presumably to implement the directive principles […] the Kerala Legislative Assembly has passed the said Bill in exercise of the legislative power conferred upon it by Arts. 245 and 246 of the Constitution read with entry 11 of List II in the Seventh Schedule to the Constitution. This legislative power is, however, to be exercised under Art. 245 “subject to the provisions of this Constitution”. Therefore, although this legislation may have been undertaken by the State of Kerala in discharge of the obligation imposed on it by the directive principles enshrined in Part IV of the Constitution, it must, nevertheless, subserve and not over-ride the fundamental rights conferred by the provisions of the Articles contained in Part III. (In Re: The Kerala Education Bill, 1959 1 SCR 995)

The Bill was a step towards realizing the constitutional goals that independent India had set for itself and the Kerala State Government had only carried out its duty as mandated by the Constitution. Jawaharlal Nehru’s Congress Party, however, was not wanting to let go an opportunity to pull down the only non-Congress Government across India. Machinations akin to that in PEPSU in 1953 were not possible and the Congress Party’s Kerala unit geared up to orchestrate an agitation against the Government and pitched itself on the side of the private school managements. The turning point came on 2 February 1959 when Prime Minister Nehru’s daughter, Indira Gandhi, was anointed President of the Indian National Congress at its Nagpur session.

Violence and vandalism rocked Kerala since 2 September 1958, the day the Bill was passed in the State Assembly. The Congress Party did not side openly with these protests, which were mostly orchestrated by the Church and the managements of private schools. Things, however, changed on 4 September 1958 when Socialist Member of Parliament Asoka Mehta raised a debate in the Lok Sabha and called for the intervention of the Union Government. On 18 September 1958, the Congress Working Committee followed this with a resolution expressing concerns similar to Mehta’s.

In the meantime, the Nair Service Society (NSS), a caste organization working to preserve the feudal privileges of the Nair community, was “aggrieved” by the land reforms ensuring land rights to the tillers and the dispossession of absentee landlords moved by the EMS Ministry. The NSS had also aided schools under its management and the Education Reforms Bill would deprive its ranks of the total control over the lives of the teachers they employed. The Bill, while conceding the powers to appointment of teachers to the managers, retained the provision that the teachers shall be paid directly by the Government therefore denying the teachers of their due, as done by the private school managers, was no longer possible.

It was in this context that the NSS demanded that the Government withdraw the law and launched an agitation. Indira Gandhi visited Kerala as President of the Congress Party on 28 April 1959 and expressed “concerns” over the deteriorating law and order conditions in the State. This was a clear signal to the groups that had orchestrated the violent agitations that the Congress Party stood by them. A convention of Hindu, Christian and Muslim private school managements on 3 May 1959 declared an indefinite agitation to “end the Communist rule in Kerala.” Less than a week later, the Congress Working Committee declared support to this agitation.

Even while the agitation turned violent and the Police resorted to use of force in many places, EMS called upon those behind the agitation to discuss the Education Reforms Bill. However, on 21 June 1959 it became clear that the real aim of the agitation was to unseat the democratically elected Communist Government as Indira Gandhi declared that the agitation in Kerala had nothing to do with the Education Bill.

It appears that Nehru held a distinct view from his daughter. Following a meeting in New Delhi with V.R. Krishna Iyer, Minister for Law in the EMS Government, Nehru visited Trivandrum on 22 June 1959. This was only a day after Indira Gandhi had made it known that her Party did not intend any negotiation on the Education Bill and that the agitation was independent of any compromise on it. Nehru seemed to set the stage for the denouement in his brief address to the press at Trivandrum, where he conveyed his impression that the protest was a mass upsurge. While maintaining that any intervention by the Center would remain the last step, he preferred “mid-term elections” as a way out.

EMS met with Nehru after that. It was in Simla a month after Nehru’s visit to Trivandrum. There is nothing on record of what transpired and whether the two discussed the option of resignation and a fresh mandate in a “mid-term election” can only be a surmise. Also, whether EMS agreed to such a proposition will have to be answered only on the basis of conjunctural evidence.

One such evidence is a document meant for internal circulation among the CPI’s Central Executive Committee in its meeting between 3 and 10 April 1960. The Election Review Report of the Party’s Kerala State Council – published after the dismissal of the EMS ministry on 31 July 1959 and the 1960 elections to the State Assembly – listed the mistakes committed between April 1957 and July 1959 as causes for the Party’s alienation from sections that ought to have been drawn into their fold rather than taking the confrontation path. “If we had the basic correct understanding and approach on these questions,” the internal report said, specifically referring to the Education Bill,

[w]e would not have launched on an Education Bill in the field of education which created the impression that we are out to end private management system in the educational sphere and which gave the supreme opportunity to priests and vested interests to influence the religious sentiments of the Christian masses against the Communist Government and the Party; we would have limited our measures to evolve steps for the adequate protection of rights of teachers and students; and we would have utilised later opportunities we got to satisfy the sentiments of these sections by showing our preparedness to bring changes in the Bill. (File 1960/33, Archives on Contemporary History, Jawaharlal Nehru University, New Delhi)

EMS himself raised an argument of a similar nature a couple of months after the CPI won the election. In a note presented to his Party’s plenum on 24-26 May 1957, EMS stressed the need for “a new perspective, new methods of organization and also new style of work.” EMS’s note pointed to an understanding prevalent within the Party that a confrontation with the Union Government was inevitable: as soon as the Communist Party-led State Government in Kerala implemented its program, it would result in a “headlong clash”.

EMS, in this note, argued:

Underlying the above assessment is a conception of a class struggle – which I think is an oversimplified and dogmatic conception of class struggle […]. In today’s situation, the development of the Second Plan, the realization of the overwhelming majority of the people for a struggle for a new life, urge for a change.

[…] inside the Congress High Command and the Central Cabinet there are forces – the initiators of the Second Plan – who find that the biggest bottle-neck in the plan is the administrative machinery which they are not able to tackle and reform. These forces are desirous that we who are pledged to work within the Constitution and who are closest to the people should succeed in the implementation of the plan so that their hands will be strengthened. So much for the position of ours vis-à-vis the Congress and the Centre […].” (File No 1957/31 I (2), Archives on Contemporary History, Jawaharlal Nehru University, New Delhi)

The reference to the Second Plan (1957-62) by EMS is the Nehru-Mahalanobis plan allocating large sums to the combined development of the agrarian infrastructure and public sector industries. In this note, he also made a specific reference to sections within the Congress High Command and the Central Cabinet and the imperative for the CPI to work to strengthen Nehru and those like him within the Congress Party leaning towards Socialism.

While the CPI seemed to have shelved the EMS’ arguments throughout the short term of the ministry, they seemed to gather new consensus within the Party after the Government’s dismissal on 31 July 1959. The later understanding that they should not have pushed the Education Bill with such force is a clear evidence of the ideas that EMS put forth in his 1957 internal brief advocating a new thinking.

However, on 31 July 1959 the Union Government led by the Congress Party dismissed EMS ministry; the Congress Party then allied with forces that had vested interest in preserving schools as their fiefs and orchestrated a violent agitation to create the conditions to invoke Article 356 of the Constitution and dismiss an elected Government. The Education Reforms Bill, meanwhile, had become a law and teachers in aided schools continued to receive their salaries directly from the Government.

EMS would become Chief Minister again on 6 March 1967; this time he headed a coalition of seven parties including his own CPI(M). The coalition interestingly consisted of at least five parties that played an active role in the agitation against the Education Bill between 1957 and 1959. It did not last its full term and fell on 24 October 1969 because of internecine squabbles among the coalition partners.

Kerala then had C. Achuta Menon of the CPI as Chief Minister between 1969 and 1977; the CPI Government was supported by the Congress. This was when the land reforms that altered the agrarian structure substantially in favor of the tillers were enacted. Coalition governments headed by the CPI(M) were formed again in 1987, 1996, 2006 and 2016; all those ministries lasted their full term. The argument raised by EMS in 1957 before his Party leadership seemed to have gained acceptance and nothing similar to the 1958-59 crisis happened in the following six decades.

This, however, is not to say that Article 356 had turned into a dead letter as Ambedkar hoped for on 4 August 1949. It remained for the Supreme Court to intervene; and that happened on 11 March 1994. A Constitution Bench of the Supreme Court substantially restricted contained the scope for abuse of the Constitutional provision and laid down specific conditions before the provision could be invoked in the S.R. Bommai and Others vs Union of India (AIR 1994 SC 1918). Article 356, by then, had been invoked on about 90 occasions and, as the Supreme Court observed, “in almost all cases against Governments run by political parties in opposition.”